Wilde v. Paschen

Cassoday, J. The property attached by the defendant, and replevied by the plaintiff and delivered to him, consisted of a large number and variety of specific articles. Accoi’ding to the verdict of the jury, the plaintiff was the owner and entitled to the possession of only about one fourth in value of the articles. According to that verdict, it wras only that one fourth of the property that was wrongfully detained by the defendant from the plaintiff. According to that verdict, the plaintiff was in no way concerned with the other three fourths in value of the property. Being in no way concerned as to that portion, he had, to that extent, no ground for his action of replevin. Such an action is to recover the [94] possession of personal property wrongfully detained from the plaintiff. There is no such thing as a vicarious right of replevin. The result was a failure of the plaintiff to recover as to three fourths of the property in value. Did such failure to recover on the part of the plaintiff entitle the defendant to a judgment for the return of such three fourths? In support of the negative of this proposition, it is said to have been “ conceded by all the parties upon the trial of the action ” that such three fourths was not the property of Deakin at the time of the seizure upon the attachments, and that the plaintiff had turned the same over to the rightful owners. There is nothing in the record indicating a voluntary surrender or relinquishment of such levy on the part of the defendant or those represented by him, nor a consent that the plaintiff might turn over such three fourths to third parties,— strangers to the litigation,— and thus relieve himself from any obligation therefor to the defendant. There is no agreement or stipulation to that effect. The order for judgment recites, in effect, that it appears from the undisputed evidence and the special verdict, that a large portion of such other property belonged to the Academy of Music, and another portion to a Mrs. Kellogg. But neither the Academy of Music nor Mrs. Kellogg was a party to the litigation. Without their being made parties, the defendant could not be forced to litigate that question; and, if he did, it would not be conclusive upon the parties finally claiming the property. Neither the court nor the jury could properly go outside of the issues made by the pleadings, and determine whether, at the time of the levy of the attachments, portions of the property attached belonged to such strangers, or to Deakin, but only as to whether the plaintiff had a right to any portion of the property under his chattel mortgage, superior to the defendant’s levy; if so, return a verdict as required by sec. 2859, E. S. Had such third persons claimed such portion of the property from the defendant, [95] as indicated in sec. 2727, E. S., then the plaintiff would not have been entitled to the possession of such portion at all, except upon indemnifying the sheriff against such claim by special undertaking, as required by that section. It does not appear -that any third party made any such claim from the defendant while he held the property. If any such claim was made from the plaintiff after the property was delivered to him by the coroner, or if the plaintiff after such delivery ascertained that such portion of the property belonged to such third persons, then he should have delivered the-same to the defendant, and notified such third persons, or applied to the court for an order that such third persons be brought in as parties to the action, as provided by statute. Sec. 2610, R. S.; ch. 41, Laws of 1883. Such third piersons, under that statute, had an absolute right to be made parties upon their own application. Carney v. Gleissner, 62 Wis. 493. This court held, in effect, in Main v. Bell, 27 Wis. 517, that, in an action by the sheriff against receiptors to him for goods seized by him on attachment or execution, they might show that the goods were in fact exempt from execution, and consequently had been delivered to the execution defendant, since those facts would discharge him from liability to such defendant. Other cases are to the same effect. Williams v. Morgan, 50 Wis. 551, and cases there cited. But the question was left open in Main v. Bell, supra, and the other cases cited, whether such receiptor could defend against the sheriff, to whom they had given the receipt, by showing a delivery of the goods by them to a third person as the real owner. Mr. Justice LyoN distinguished Main v. Bell from New York cases, holding that such receiptors could not defend against the sheriff in such a case on the ground “ that the property belonged to a person other than the execution debtor,” to whom it had been delivered. Cornell v. Dakin, 38 N. Y. 253. See, also, Case v. Steele, 8 Pac. Rep. 242, [96] In the case at bar .we are all convinced that there has been a mistrial. Moreover, to sanction the practice adopted in this case would not only lead to much uncertainty and confusion in the determination of title to property in such cases, but subject parties to repeated actions in favor of different persons, and hence to great injustice. Our statutes indicate a practice which amply protects the rights of all, and it should have been followed in this case. Of course, it would be unjust for the plaintiff to be compelled to pay the defendant for the value of property which never in fact belonged to Deakin. By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded with the privilege of making all persons parties who are interested in the subject matter of the litigation, and for a new trial.